Opinion
March 10, 1994
Appeal from the Supreme Court, New York County, Richard Carruthers, J., Michael Corriero, J.
The hearing court properly found that the consecutive showup identifications made by two complainants constituted acceptable police procedure, as proximate in time and place to the crime (People v. Duuvon, 77 N.Y.2d 541, 545). That defendant was detained handcuffed in a patrol car does not render the showup identifications per se unduly suggestive and, in any event, each complainant immediately identified defendant based upon his extended, close range view of defendant during the robbery attempt (People v. Kirkland, 192 A.D.2d 414, lv denied 81 N.Y.2d 1075). The display to one of the complainants of a sweatshirt, cap and gun that presumably belonged to one of the would-be robbers immediately prior to that complainant's showup identification of defendant did not render the showup impermissibly suggestive, as the complainant's hearing testimony repeatedly confirmed that the items were in no way connected by the police to defendant, who was unequivocally identified out of a group of five suspects as the gun-toter.
The People's evidence at trial overwhelmingly proved that defendant and a cohort entered a Manhattan restaurant and threatened its three occupants with a gun and a knife, while demanding money from the maitre d'. The trial court properly denied defendant's request for a missing witness charge regarding the third restaurant occupant, on the grounds that there was no showing that the individual in question would have contradicted or added to the testimony of the other witnesses, and that defendant, who was aware of the identity of the potential witness, chose not to call him (People v. Almodovar, 62 N.Y.2d 126, 133).
We have considered defendant's additional claims of error and find they do not warrant modification of the judgment.
Concur — Rosenberger, J.P., Ross, Asch, Rubin and Tom, JJ.